RYKB and Child Support Registrar (Child support second review)

RYKB and Child Support Registrar (Child support second review) [2021] AATA 3219 (7 September 2021)
Division:GENERAL DIVISION
File Number: 2020/6982
Re:RYKB
APPLICANT

AndChild Support Registrar
RESPONDENT

AndKZMS
OTHER PARTY

DECISION
Tribunal:Ms A E Burke AO Member
Date:7 September 2021
Place:Melbourne

The Tribunal affirms the decision under review.
...........................[sgd].........................................
Ms A E Burke AO Member
Names used in all child support 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 sections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
Catchwords
CHILD SUPPORT – review of care percentage determinations – actual care varied from arrangements as provided for in Court orders – whether payee was providing actual care – whether payer had obligation to pay child support – whether care is able to be provided when the payee is hospitalised – whether no parent was providing actual care for the child - conflicting evidence of extent of actual care – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Cases
NLBD v Child Support Registrar [2020] AATA 35
Polec v Staker and Anor (SSAT Appeal) (2012) 48 Fam LR 530
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Guides to Social Policy Law, Child Support Guide
REASONS FOR DECISION
Ms A E Burke AO Member
7 September 2021

The Applicant, RYKB, is seeking a second-tier review by the General Division of the AAT (AAT2) of a decision by the Social Security and Child Support Division of this Tribunal (AAT1 or First-Tier) on 29 October 2020. AAT1 affirmed the care determination made by the Child Support Registrar (the Registrar) that from 27 October 2019 there was no change in care and the Other Party (KZMS) continued to have 100% care of Child H. RYKB argued he did not have an obligation to pay child support as KZMS was not providing 100% care to their child.
The application was heard on 6 August 2021 by video-link. RYKB was represented by Counsel, Ms Alex Metherell; and KZMS was self-represented and appeared by telephone. Ms Katherine Whittemore, Solicitor at Sparke Helmore, appeared for the Respondent, the Registrar.
BACKGROUND
The Applicant, RYKB, and the Other Party, KZMS, are the separated parents of two children born in 2004 and 2006 respectively, who the Tribunal will refer to as Child V and Child H.
RYKB is no longer required to pay child support for Child V as she is no longer residing with KZMS. Child V is currently in receipt of Youth Allowance and living with her elder sister from KZMS’ first marriage.
On 27 December 2019, RYKB wrote to the Child Support Agency seeking an immediate review and reassessment of his obligations from 27 October 2019, as Child H was no longer in the care of KZMS but was living with his maternal grandfather (WG), so that neither parent had care of Child H. RYKB wrote:
I have today (27 December 2019) received credible information from the payee's family that H is also no longer residing with the payee or in the care of the payee from the same date - 27 October 2019.
The payee is living in a caravan park without the care or control of any of the children of the assessment - as evident in your letter related to V - and the information I have received today (27 December 2019). I do not know the physical address of the caravan park that the payee is residing in. You will no doubt have that information.
H is now in the care of WG […] residing in [..,] NSW. I am unaware of the physical address; however, the payee does not live with WG nor does the payee have any care or control over H. The payee does not have care or control over H.
I have been assessed to continue to pay child support to the payee for H. The payee does not have care or control over H. It is unjust, unfair and totally unlawful that I am required to pay money to the payee when the payee has no lawful entitlement to that child support obligation.
On 23 March 2020, a Child Support case officer decided they were not satisfied on the evidence that there had been a change in care from the original decision.
On 28 March and 8 April 2020 RYKB lodged objections to the decision with the Registrar. In a letter on 28 March 2020 RYKB wrote:
This is long enough to make a very simple administrative decision that the payee does not have the care and control of H and that I should not be assessed to pay any child support obligation from 27 October 2019.
As per my last correspondence: I am entitled to have the child support obligation and subsequent file finalised and closed against the payee. I do not have to pay the payee for something she is not entitled to receive.
On 21 August 2020, the Registrar advised RYKB they had disallowed his objection:
SUMMARY OF OBJECTION DECISION
The outcome of this decision is that it has been disallowed.
We have made the decision to refuse to reflect the care of H as being in neither parents care from 27 October 2019.
The effect of the objection decision is: There is no change to the assessment as a result of this decision.
DECISION UNDER REVIEW
The decision made on 23 March 2020 to refuse to reflect the care of H as being in neither parents care from 27 October 2019.
RYKB has objected to this decision because KZMS does not have care and control of H.
In considering this objection, a full merit review of the original decision has been conducted.
This means that we have examined and evaluated all the relevant information in order to reach a conclusion based on the relevant facts of the case and how the law is applied to those facts.
WE CONSIDERED THE FOLLOWING EVIDENCE IN THE DECISION
The pre-existing level of care recorded for H was 100% to KZMS from 8 October 2016.
On 2 January 2020, RYKB notified us in writing that H left KZMS`s care on 27 October 2019. RYKB advised H is residing with and in the care of WG who resides at … New South Wales. KZMS is living in a caravan park and does not reside with H and WG.
Details of Objection Decision
On 24 January 2020, KZMS advised she disagreed with the care reported by RYKB as H lives with her full-time. We requested KZMS provide evidence to support her claims.
On 23 March 2020, we made the decision to refuse to amend the care of H from 27 October 2019.
On 1 April 2020, we received RYKB's objection to this decision.
On 20 August 2020, we contacted H`s School who confirmed their records show H resides with KZMS at the same address.
On 20 August 2020, we contacted WG who advised H is not in his care. WG stated KZMS and H stay with him sometimes, but KZMS is responsible for feeding him and all the decision in relation to H`s care. WG advised on occasions, he may drop H off at the bus stop before school but KZMS is responsible for his care.
REASONS FOR THE DECISION
In order to make a decision to change the record of care for a child we must be satisfied that there has been a change to the ongoing pattern of care (section 49 and 50 of the Child Support (Assessment) Act 1989).
When considering whether the increased care demonstrates a change in the pattern of care, the Registrar will consider the information presented or obtained to determine the care that is likely to be provided by the parents in the care period.
In this case, pre-existing level of care recorded for H was 100% to KZMS from 8 October 2016.
Care will generally be worked out based on the number of nights that the child is likely to be in the care of the person during the care period (CSA Act section 54A).
A new percentage of care can be determined whenever the care of a child has changed.
In this case, the email from A provided by RYKB does not stipulate H left KZMS `s care, it states that she had asked H if he wanted to live with her and H had declined.
RYKB requested we contact the following people, as they would be able to confirm H`s care, M, N, WG and AC.
The following unsuccessful attempts were made on the telephone numbers provided by RYKB for AC, N, WG and M, on 25 June 2020, 24 July 2020and 29 July 2020.
On 20 August 2020, we unsuccessfully attempted to contact N and M.
H`s school confirms their records show H resides with KZMS.
We also contacted WG by telephone, and he confirmed H is not in his care but continues to be in the care KZMS.
Based on the information available we cannot be satisfied a change to H`s level of care occurred.
We have therefore made the decision to refuse to reflect that H is in neither parents care on 27 October 2019.
H`s care will continue to be reflected as being in KZMS `s 100% care from 8 October 2016.
The objection is disallowed.
On 1 September 2020, RYKB requested a review of the Registrar’s decision by the Social Security and Child Support Division of this Tribunal (AAT1 or First-Tier) on the basis that:
The payee does not have the care and control of children of the assessment. The CSA were provided an email from the payee's daughter confirming this fact but have refused to accept this email as evidence. The CSA refused to change care percentage to reflect that they payee does not have the care and control of the children of the assessment and therefore there should be no child support assessed obligation.
On 29 October 2020, AAT1 affirmed the decision under review. The Presiding Member at AAT1 stated at [19]-[21]:
It is open to the tribunal to examine other considerations, such as the extent of control of the child, including their overall responsibility for the child and making major decisions relating to who the child spends time with and the child’s health, education, discipline, recreational and/or social activities, and any arrangements for others to meet the needs of the child (delegated care). In addition is the consideration of whether the person meets the needs of the child by paying for the costs of meeting the needs of the child.
The tribunal cannot be satisfied that KZMS’s care of H, based on the evidence provided by RYKB to the Department and to the tribunal, stopped from 27 October 2019. The evidence provided to substantiate care was not occurring is insufficient to support a positive finding that KZMS no longer has the care of H. RYKB does not have personal knowledge of the care arrangements for H. The third-party evidence provided in support of his submissions, also do not support a positive finding that the care was not occurring. KZMS has given sworn evidence, including a statutory declaration of the care provided. In addition, there is additional third-party evidence on the Department file, including evidence from H’s school, which states that H continues to reside with KZMS.
Accordingly, the tribunal determines that there is insufficient evidence before the tribunal which shows that KZMS ‘s care of H is no longer occurring. Therefore, the tribunal affirms the decision under review.
On 7 November 2020, RYKB requested a review of the AAT1 decision by AAT2 on the basis that:
The decision made by the AAT1 is flawed and unsafe.
The Member has not appropriately considered the factual evidence which goes directly to the issue of the payee being incapable of caring for H, and therefore subsequently is ineligible to receive a child support obligation.
The Member has given inappropriate weight and credit to the payees evidence which was proven to be tainted and therefore unreliable at best.
On balance the evidence demonstrates that the payee does not have the capacity or capability of caring for H and therefore is not eligible to receive a child support obligation for the care of H.
On balance, there is sufficient evidence provided to demonstrate that the payee is not a credible witness and therefore any evidence provided cannot be given any weight or bearing in this matter.
On balance, there is sufficient evidence provided that the payee does not have care of H and is therefore not eligible to receive a child support obligation for the care of H.
On balance, there is sufficient evidence available, for the tribunal to decide:
1. The payee has provided false and misleading information to the CSA in this process.
2. The payee is an unreliable witness.
3. The third-party has provided false and misleading information to the CSA in this process for motives unknown.
4. The third-party is an unreliable witness.
5. The information provided by WG is self-serving and unreliable.
6. The statutory declarations are to be excluded as evidence. They contain falsehoods and are therefore unreliable.
7. The evidence pertaining to the school and family law court order is irrelevant to the reassessment, objection, and this AAT hearing.
8. The reliance of the CSA on the above information has tainted the entire reassessment and objection process.
9. The CSA have failed to adequately assess the evidence appropriately and make adequate enquiries to verify the information provided.
10. The CSA have excluded conducting enquiries that could have corroborated the payer’s position.
11. On the evidence, the CSA reassessment and objection decisions are flawed in both reasoning and process.
12. It is open to the tribunal to determine that:
a. The payee does not have care and control of the children (now child) of the assessment from October 2019. The CSA administration file is to be closed from October 2019
Or in an alternative:
b. The payee has not had care and control of the children (now child) of the assessment from October 2019 to August 2020, where the evidence now suggests that the payee is responsible for H on weekends only or 2 x 52 = 104 nights a year only.
Or:
c. Return the file to the CSA for a new reassessment, given the identified false information provided, now that the CSA are in possession of all the tribunal submissions and hearing evidence.
ISSUE
The issue for determination before the Tribunal is whether the existing care determination should be revoked.
LEGISLATIVE FRAMEWORK
The relevant legislation, the Child Support (Assessment) Act 1989 (Cth) (the CSA Act), contains a complex and confusing scheme for the determination of the pattern of care for a dependent child. The scheme determines the percentage of care, in this case, for each parent. The percentage of care is generally determined by the actual care each parent is providing the child and is often guided by a care agreement. In this case, the original determination of care was based on the court orders issued in 2011.
The term percentage of care is defined in section 5 of the CSA Act:
percentage of care, in relation to an individual who cares for a child, means the individual’s percentage of care for the child that is determined by the Secretary under Subdivision D of Division 1 of Part 3.
Subdivision B—Determination of percentage of care, Division 4 of the CSA Act contains the following provisions:
49 Determination of percentage of care—responsible person has had etc. no pattern of care for a child
(1) This section applies if:
(a) either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child 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; or
(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 or 52 applies in relation to the responsible person.
50 Determination of percentage of care—responsible person has had etc. a pattern of care for a child
(1) This section applies if:
(a) either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child 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; or
(b) the Registrar:
(i) revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of a 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.
Section 54A of the CSA Act states:
54A Working out actual care, and extent of care, of a child
(1) The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.
(2) The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.
(3) For the purposes of this section, a child cannot be in the care of more than one person at the same time.
(4) This section does not limit section 50, 51, 52 or 54.
The Respondent’s Statement of Facts, Issues and Contentions provides a helpful summary of the legislative impact on this matter, given the father has 0% care and is not seeking to increase this percentage:
4.18 The essential difference between ss 49 and 50 is that s 49 applies if the Registrar (or the Tribunal in the Registrar’s shoes) is satisfied that a responsible parent has had, or is likely to have, no pattern of care during the care period. Where the decision-maker is satisfied that a responsible parent has had, or is likely to have, a pattern of care, s 50 applies. The Tribunal is therefore required to determine whether the mother and father had a pattern of care during the “care period”. If no pattern of care is found, the Tribunal must determine the percentage of care to be 0% for that parent (ss 49(2)-(3) of the Assessment Act). If a pattern of care is found for one or both of the parents, the Tribunal must determine a percentage of care for the parent that corresponds with the actual care of the child that has occurred, or is likely to occur, during the care period (s 50(3) of the Assessment Act).
4.19 A “care period” does not have any fixed duration. The Guide provides at [2.2.1] that “a care period is generally a 12-month period from the day on which the actual care of a child changed”.
4.20 Section 54B of the Assessment Act dictates the date from which any new care percentage determination made by this Tribunal must take effect. The date of effect will be the day immediately after the day the revocation takes effect by operation of s 54B(2)(c)(ii). The Tribunal has no power to order otherwise. This date may be 27 October 2019, or if the Tribunal finds that the care changed on a different day prior to the date of notification and that the existing care determination should be revoked, the day after that revocation date.
5.1 The core issue for the Tribunal to determine on review is the appropriate percentage of care between the father and the mother for an appropriate care period, starting from 27 October 2019, the date of the alleged care change. There appears to be no dispute that the father had no pattern of care during the care period (AS [5]). The father’s position is that the mother did not have 100% care during the care period because WG had some care when the other party was hospitalised.

The Tribunal is assisted by the Guide to Social Policy Law: Child Support Guide (the Guide). The Guide provides assistance to those who administer the CSA Act. While it is not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
The Guide clearly outlines that the guiding principal of the CSA Act is the duty of care a parent owes to their child, which is not affected by the duty any other person has to maintain the child. The Guide states at 1.3.1:
Principal Object
·The principal object of the CSA Act is to ensure that children receive a proper level of child support from their parents.
Particular objects
The particular objects of the CSA Act include:
·that the level of financial support is provided in accordance with the parents' capacity to provide financial support - parents with a like capacity should provide like amounts
·that the level of support should be determined in accordance with the costs of the children
·that carers should be able to have the amount of financial support assessed without the need for court proceedings
·that children share in changes in the standard of living of both of their parents, whether or not they live with both or either of them, and
·that Australia is in a position to give effect to its obligations under international agreements or arrangements which relate to maintenance obligations arising from a family relationship, parentage or marriage.
Duty of parents to maintain their children
·The CSA Act also states that a parent has a primary duty to maintain their child. This duty: is not lower in priority than the duty of a parent to maintain any other child or person
·has priority over all commitments of the parents apart from necessary commitments for self-support or necessary commitments to support another child or person that the parent has a duty to maintain, and
·is not affected by the duty of any other person to maintain the child or any entitlement the child or another person may have to receive an income tested pension, benefit or allowance.
The Guide, at 2.2.2, provides the following guidance on determining types of care determinations:
When determining a percentage of care, the Registrar can make the following types of determinations:
·a determination of the percentage of the actual care that each parent provides (sections 49 and 50)
….
The Registrar will usually determine a percentage of care based on the actual care that each parent or non-parent carer has of the child. The only circumstance in which the Registrar will not use actual care to determine the care percentage is in limited circumstances where a parent or non-parent carer is not complying with a written agreement, court order or parenting plan and an interim care determination is in effect
When the Registrar is notified or otherwise becomes aware that the care for a child has changed, the previous determination will be revoked. A new care determination will be made according to the circumstances.
The Guide provides definitions used to describe care for child support assessments at 2.2.1:
Once a care percentage has been determined, there are 5 different terms that may be used by the Registrar to describe a parent or non-parent carer's care:
Below regular care: A care percentage of 0% to less than 14%. This level of care does not affect the child support assessment.
Regular care: A care percentage of 14% to less than 35% - will be recognised in the child support assessment as a contribution to the costs of the child. A parent or carer will not receive child support if they have a care percentage of less than 35% for a child.
Shared care: A care percentage of 35% to 65% - will be recognised in the child support assessment as a contribution to the costs of the child. A parent with shared care can receive or be required to pay child support. A non-parent carer with at least shared care can receive child support.
Primary care: A care percentage of more than 65% to 86% - will be recognised in the child support assessment as a contribution to the costs of the child. A parent will not be assessed to pay child support if they have more than 65% care.
Above primary care: more than 86% to 100% - will be recognised in the child support assessment as meeting all of the costs of the child. A parent with this amount of care is not required to pay child support.
The following table identifies the care terms for different care percentage ranges, also showing the number of nights in a year that equates to the care term where the care determination is based on nights.
TermPercentage of care              Number of nights
Below regular             0 to less than 14%                 0 to 51
Regular  14% to less than 35%            52 to 127
Shared  35% to 65%  128 to 237
Primary  More than 65% to 86%          238 to 313
Above primary            More than 86% to 100%        314 to 365
At 2.2.2 the Guide provides the following guidance on determining a change in pattern of care:
When considering whether to make a new care determination, the Registrar will consider whether there has been a change to the existing pattern of care. If there has been a change to the pattern of care, the Registrar will need to identify the event that is relevant. The event is used to determine the commencement of the care period. The Registrar will need to determine the percentage of care that is likely to occur in the care period.
What constitutes a change to the pattern of care will depend upon the individual circumstances of the case.
The Guide provides the following guidance on determining whether care exists at 2.2.1:
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:
• 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.
Also, at 2.2.1, the Guide provides the following on percentage of care:
The percentage of care is the mechanism used in the child support assessment formula to take into account the amount of time a parent or non-parent carer is responsible for providing care for the child.
A person's percentage of care for a child will generally be determined according to the actual care that they have of the child. The actual care may be reflected in care arrangements agreed upon by the parents, including non-parent carers. This agreement might take the form of a written agreement, parenting plan or court order in relation to a child's care.
A parent or non-parent carer's percentage of care for a day in a child support period is the percentage of care that the person is likely to have of the child during the care period.
Care will generally be worked out based on the number of nights that the child is likely to be in the care of the person during the care period (CSA Act section 54A).
…
Additionally, in limited circumstances, a person may have care of a child who is not living with them for a period of time. For example, a person can provide care for a child who is at boarding school, in hospital or in separate accommodation. However, a person who simply supervises the child (for example, a baby sitter, a child minder such as a grandparent or a schoolteacher) does not provide care.
Consideration is given to who has responsibility for making arrangements for, and decisions about, the child's welfare, as well as who is meeting the child's costs, rather than just the accommodation arrangements themselves. The Registrar will give weight to statements from both parents and any non-parent carers.
PROCEDUAL ISSUE
At the commencement of the proceeding, the Applicant’s Counsel expressed concern at the lack of procedural fairness to her client, as a summons requested by him had not been issued by the Tribunal.
The Applicant’s Counsel asserted that this was a significant issue of procedural fairness which had prevented her client from pursuing his application, as the information he would have sought in the summons would have provided the only potential objective evidence about whether the Other Party had been in a position to have H in her care during the relevant period.
The Applicant’s Counsel advised the Tribunal her client’s position was that the information sought from the mental health service by way of summons went squarely to the dispute, which is the number of nights the Other Party has been hospitalised. It was her client’s central concern that the onus was on him to put evidence to the CSR, as the CSR was not in a position to investigate KZMS’ capacity to care for H. And That, as the Tribunal had refused to issue the summons on two occasions, her client had not been permitted to investigate that capacity. The Applicant’s Representative advised the Tribunal that this was the biggest concern of her client and she would be focusing on it.
The Tribunal, constituted by a Senior Member, had on two separate occasions issued directions refusing the requests for summons, advising:
On 8 December 2020, the Applicant requested the Tribunal summon the following persons and entities to produce documents to the Tribunal:
a)        New South Wales Department of Health, Mental Health Branch;
b)        the Other Party to this proceeding; and
c)        the Proper Officer, Subpoena Team, Services Australia.
Following a directions hearing on 18 February 2021 to consider the above summons requests, I refuse those requests pursuant to subsection 40A(2) of the Administrative Appeals Tribunal Act 1975.
AND
On 21 April 2021, the Applicant requested the Tribunal summon the following persons and entities to produce documents to the Tribunal:
a)        New South Wales Department of Health, Mental Health Branch;
b)        the Proper Officer, Subpoena Team, Services Australia.
Following a directions hearing on 7 May 2021 to consider the above summons requests, I refuse those requests pursuant to subsection 40A(2) of the Administrative Appeals Tribunal Act 1975
The Senior Member refused to issue the Summonses on the basis that they were merely fishing expeditions, seeking material to support unsubstantiated assertions. Additionally, the request for material was for a date earlier than the period in dispute and the issuing of the summons would not be appropriate if they were merely trawling to impugn the credibility of a witness.
The Tribunal concurred with the Senior Member’s decision to refuse the issue of the summonses. The Tribunal did not agree that procedural fairness would be denied to the Applicant in the proceedings because of the Senior Member’s decision.
The Tribunal advised that if the Applicant was seeking to appeal the decision to refuse to issue summonses, he had avenues by which he could do that; and the substantive hearing would be adjourned until the outcome of an appeal to the Federal Court had concluded.
After a short adjournment in the proceedings, the Applicant’s Counsel advised the Tribunal that the Applicant consented to proceed with the hearing.
The Tribunal found that procedural fairness had not been denied to the Applicant as his Counsel was able to seek, by way of cross-examination, information from KZMS about her periods of hospitalisation, the medical reasons for her hospitalisation and her capacity to care for H while hospitalised.
EVIDENCE
On 29 November 2011, final property and parenting orders were put in place by the Federal Magistrates Court of Australia, ordering:
The mother have sole parental responsibility for the children off the relationship V born 2004 and H born 2006 (“the children”).
The children live with the mother.
RYKB’s submissions to AAT1 hearing stated:
The payee does not have care and control of the child of the assessment – H.
…
The CSA were notified on 2 January 2020 that the payee no longer had care and control of H.
The Payee suffers from mental illness and is in capable of caring for the children of the assessment. This was proven in 2016 when the Payee failed to notify the CSA of her involuntary mental hospital admission for an extended period of time. It was in fact WG, the payees father, that arranged for the involuntary hospitalisation of the payee through his complaints to NSW Child Services because of the fact that the payee wasn’t caring for the children of the assessment, which included not sending the children to school and his complaints to the health department.
At that time (July 2016), the payee provided false and misleading information to the CSA, along with her father WG indicating that she had the care and control of the children of the assessment. This was proven to be incorrect and the CSA ceased the ongoing child support obligations.
The payee successfully reapplied for a child support assessment on 8 October 2016.
The payee has been hospitalised frequently for long periods of time from that period due to her mental illness and has not been caring for the children of the assessment. The payee has neglected (or deliberately refused) to inform the CSA of these hospitalisations and has been receiving a child support obligation that she is not entitled to from that period.
The CSA have failed to undertake any compliance measures to confirm the care and control of the children of the assessment over this period. Relying solely on the information from the payee, despite the payee having provided false and misleading information previously (PA1). The CSA ignored the fact that payee admitted to a 3 week hospitalisation in her statutory declaration dated 28 January 2020 and took no compliance verification process in relation to this
Had it not been for the fact that V made the decision to leave the payee and live with her adult sister and required a birth certificate, it would not have been known that the payee did not have care and control of the children. Meaning that the accepted assessment from 8 October 2016 would still be ongoing relating to both children.
V left the residence because of the payee’s mental illness. The CSA have accepted that date being 27 October 2020. AC reached out to me to get assistance for Victoria as the payee was not providing any and had turned on both V and AC. WG had also turned on AC and V. Which was disappointing given the fact that it was WG that originally instigated the payee being involuntarily hospitalised for her mental illness.
The CSA have relied on Statutory Declarations from the payee and a third party as proof that the payee has care and control of H. Those Statutory Declarations contain false information where the payee attests that V is holidaying with AC and that V resides with her and H from late October and early November. The third-party declaration attests the same information, suggesting that V was staying with AC for school holidays. This is factually incorrect where AC provides the evidence that H and V where visiting each weekend, but due to the payee’s mental illness this stopped. The CSA evidence is that V left on 27 October 2019. The CSA have failed to acknowledge this false information of which they, the CSA, have the records for. A simple check of the school holiday period Term 3 in Queensland indicates that that ended Monday 7 October 2019 contrary to the information provided in the statutory declarations
The payee was residing in a caravan whilst H was under the care and control of WG. There has been no CSA verification of addresses undertaken to make the comparisons between WG’s and H’s known addresses. There is no confirmation of the payee’s addresses.
AC had provided the evidence that H had decided to remain living with WG. The payee was re-hospitalised and not caring for the H.
…
2020: The payee has had unknown number of hospitalisations related to her mental illness, first triggered by WG in 2016 due to the payee’s failure to care for the children of the assessment. The payee failed to inform the CSA at that time and WG subsequently supported the payee in providing false and misleading information. The payee has failed to inform the CSA of the subsequent and ongoing hospitalisations since 2016, and neither the payee or WG have informed, confirmed or notified the CSA of the fact the payee was hospitalised again in 2020 and was only released on the conditional undertaking from WG that he care for the payee and the payee resides with him. Neither the payee nor WG have disclosed this information. The failure of the payee to provide forthright and truthful information is for the payee’s financial benefit in receiving a child support obligation that the payee is not entitled to received.
The CSA has taken no compliance measures or initiatives to seek confirmation of all periods of hospitalisation of the payee and then verify who had care of H and where H was living during those periods. This is despite the CSA being aware of the payee’s mental illness, and even on the payee’s own admissions of hospitalisation in her statutory declaration.
On 2 March 2020 the Principal of H’s school advised in writing that H resided with KZMS.
On 20 August 2020 a file note from Child Support records:
Rang WG who confirmed H is not in his care he is in KZMS 's care.
WG further stated that KZMS is in charge of feeding, H, makes all the decisions re his care, and his schooling and does everything, WG advised he sometimes drops H off at the bus stop.
WGr stated he and H stay with him a couple of days per week but KZMS is still H carer.
On 6 October 2020 a case worker from NSW Family and Community Services emailed RYKB and advised:
The assessment commented there was no specific information provided around the mother's (KZMS's) current mental health issues to ascertain whether they are currently severe and/or persistent to the extent that H is at risk of significant harm. It was acknowledged there is a documented history of mental health issues for the mother, however it was noted that the family are living with the grandfather who is an additional household adult member who provides care and support for both H and KZMS.
RYKB provided a lengthy response to the AAT1 decision on 7 July 2020. In part, he said:
Member has not appropriately considered the factual evidence which goes directly to the issue of the payee being incapable of caring for H, and therefore subsequently is ineligible to receive a child support obligation.
Member has given inappropriate weight and credit to the payees evidence which was proven to be tainted and therefore unreliable at best.
On balance the evidence demonstrates that the payee does not have the capacity or capability of caring for H and therefore is not eligible to receive a child support obligation for the care of H.
On balance, there is sufficient evidence provided to demonstrate that the payee is not a credible witness and therefore any evidence provided can not be given any weight or bearing in this matter.
On balance, there is sufficient evidence provided that the payee does not have care of H and is therefore not eligible to receive a child support obligation for the care of H.
On balance, there is sufficient evidence available, for the tribunal to decide:
The payee has provided false and misleading information to the CSA in this process.
The payee is an unreliable witness.
The third-party has provided false and misleading information to the CSA in this process for motives unknown.
The third-party is an unreliable witness.
The information provided by WG is self-serving and unreliable.
The statutory declarations are to be excluded as evidence. They contain falsehoods and are therefore unreliable.
The evidence pertaining to the school and family law court order is irrelevant to the reassessment, objection, and this AAT hearing.
The reliance of the CSA on the above information has tainted the entire reassessment and objection process.
The CSA have failed to adequately assess the evidence appropriately and make adequate enquiries to verify the information provided.
The CSA have excluded conducting enquiries that could have corroborated the payer's position.
On the evidence, the CSA reassessment and objection decisions are flawed in both reasoning and process.
It is open to the tribunal to determine that:
The payee does not have care and control of the children (now child) of the assessment from October 2019. The CSA administration file is to be closed from October 2019
Or in an alternative:
The payee has not had care and control of the children (now child) of the assessment from October 2019 to August 2020, where the evidence now suggests that the payee is responsible for H on weekends only or 2 x 52 = 104 nights a year only.
Or:
Return the file to the CSA for a new reassessment, given the identified false information provided, now that the CSA are in possession of all the tribunal submissions and hearing evidence.
…..
At paragraph 12: KZMS stated …. She had the care of H since the court orders were made in 2011.
This is factually incorrect. The facts, as supported by the CSA irrebuttable evidence, was that the obligation was ceased in 2016. This was because of the incapacity and inability of the payee to care for the children of the assessment due to her mental illness. The payee’s mental illness is ongoing and therefore remains relevant and critical to the decisions of this matter. It is factually incorrect and flawed to accept the evidence of the payee to have had care of the H since the 2011 orders when the evidence proves otherwise.
In accepting the court order as relevant evidence, would suggest that the payee is also entitled to a child support obligation for V, where the court order also indicates that the payee has the residency of V. This of course is not the case, where V is not in the care of the payee and the CSA’s own irrebuttable evidence confirms that the payee is not entitled to a child support obligation for V from 27 October 2019. The court orders are irrelevant to the facts in issue.

KZMS’ statement to the Tribunal dated 25 June 2021, says:
That my son H continues to live with myself and is still in my care 100% of the time. This has occurred since H was 2 years of age. H is now 14 years of age.
This includes normally parenting from every day to day activities, full financial responsibility, fully responsibility when it comes to every aspect of H's day to day life, long term decision making including medical, dental, school & education needs. This includes organising and taking H to his recent Pre-Operative CT scan and all related dental & hospital appointments in preparation for Oral Surgery on his teeth/mouth.
I ensure H is up every day and ready for school and drive H approximately 6 mins to the bus. I pick H up each & every afternoon from the bus stop or after school activities if they are on. On the odd occasion, my 80 year old father, doing normal grand parent duties as he does will one other grandson, will pick up H for me if I have an appointment or I am asked to work. I drop H to his mates houses on weekends when that occurs and again pick him up from his friends house. I also occasionally give his friends mum a $20 or $50 to cover the cost of feeding or doing things with the boys during this time.
Like any parent, I take H to all his doctor, hospital & dentist appointments including x-rays & an upcoming CT scan H is required to have
I take H to and from all his after school sporting activities including things such as school swimming carnivals and I am 100% responsible & pay for all these activities for H. This will include his upcoming school excursion trip to the Snow with the school. The help of child support payments ensure H can attend these school & other activities along with the other children his age.
I have been and continue to be 100% responsible for all aspects of H's life since separation from RYKB when H was only 2 years of age.
I am & continue to be 100% fully responsible for the discipline of H with respect to guiding him as growing young man as well as care for him in his day to day life. This includes the little things from buying him a face wash for his pimples to advice on cleaning his face during puberty to ensuring he goes to bed on school nights at a reasonable hour to ensuring he gets up in time for the bus in the morning, given he is a teenager and likes to stay up late at night and sleep in the morning.
I continue to be responsible for all Decision Making, Caring, Transporting & Financial Costs & Outlays with respect to but not limited to the following:-
Friends House & Outings:
School:
Decisions with Education, including Homework & Assignments and any after school detentions/disciplinary matters should they arise.
Bus:
I have always had & still have (an online account) as H's parent for his Government school bus passes and recently applied to add another Transport company on my online for H.
Personal Expenses:
I continue to be responsible for all decision making and expenses associated with Clothing, School Uniforms & Shoes for H.
Recreational Expenses:
I continue to be responsible for all decision making and expenses associated Xbox, Other online gaming & Subscriptions, Fishing Gear, Boxing/Gym Gear etc for H.
It has been and continues to be myself who applies as H's parent for the Vouchers for H to help assist towards H Active Recreational out of school activities.
Food:
I continue to be fully responsible for all decision making & outgoing costs associated with food and meal preparation for H including his special dietary requirements.
Haircuts:
I continue to be fully responsible for ensuring H has haircuts and the costs associate with those haircuts, including numerous headline treatments which I do myself to clean up H's hair, when the occasions have arisen.
Medical:
I continue to be 100% responsible for all H's Medical. When Hbroke his leg at school and required surgery. I slept at the hospital and never left H's side. Again when he broke his arm riding his bike too fast in the dirt, I attended & took H to hospital. On both these occasions like always, I attended & took H to all his medical & fracture clinic appointments.
H, since separation at the age of 2, is a dependent on my medicare card. He is listed as number 3 on my card. I sign and make 100% decisions for H for both Medical & Dental and have done so separation from RYKB.
Dental:
Recent surgery:
I was 100% responsible for the care & decision making with respect, to not only H's recent surgery, but for both times H has had surgery. Also for every time H has had to go to hospital including outpatients. Hospital records will confirm this.
My own hospital stay:
A hospital stay by myself mean't H stayed at the house with my elderly Gold Card War Veteran father, WG (80 yrs of age) & my Uncle, (76 yrs of age who does not drive). During this time I made all decisions with respect to H and covered all his financial expenses, right down to advising what H would take in his lunch as at that point H was taking a packed lunch to school. My Uncle or my father, usually my uncle, cooked for H during this time. H would make his own breakfast and my purchased packed lunches for Has I had advised and paid for. My dad bought H into hospital each & everyday to see me and I would give H instructions of what he could & couldn't do with respect to going over to friends houses, bedtimes etc. I called H each & every morning to get H out of bed to bed him up ready for school. This is because my dad goes out to play cards 3 nights per week and would get home very late and sleeps in the mornings. H would get ready and I would get H to wake up dad to get him to the bus. This was just during my hospital stay.
At the hearing, RYKB gave evidence as follows:
Member: My basic question is, if you are not paying your former partner for the care of? the child, then who is going to pay for the care of H? How is this going to be met? Because at the end of the day, the money is for the child, if you are not paying it to your ex-partner, then who and how is H’s needs going to be met financially?
Applicant: That I can’t really answer, other than probably the taxpayer, which I’m one anyway. My argument all along is that I’m against paying for something that I don’t have to pay for. And as part of my submissions was if not 100% then clearly open to a lesser assessment. I’m just looking for a fair and reasonable assessment and some compliance outcomes, rather than what the agency provides.
M: But if you are not responsible for paying for your child because child support is about paying for the child, it’s not actually- we can all dispute where the money goes and how it goes but that’s another time and another day, I can completely appreciate that. But if you’re not paying it to your ex-partner then why can you abrogate responsibility for your financial support of both your children?
A: Yes, the answer to that is, if I’m not required to then why should I in those terms. Now that V is now independent in terms of the Centrelink that she receives, that’s tax-payer paying for that so, at times she reached out I have paid for those things that she required to get to school. It’s a double edged sword Member.
M: Why aren’t you responsible for the children you’ve had?
A: I never said I wasn’t, what I’m saying is that a fair and reasonable assessment is what I’m after and I believe I’m not getting that, and I’m entitled to that.
…
M: But at the moment, you are aggrieved that for a period of time your ex-partner was in hospital, she couldn’t have been caring for the child and therefore you shouldn’t be paying.
A: That’s correct.
M: Even though she had no choice of being in hospital for six of those weeks? It’s not like it was a choice to go to hospital for a mental health issue. A: That’s true, correct.
M: But just because she wasn’t there physically, therefore that means she wasn’t able to provide care, even though, as I said if she’d had cancer or if she’d had a car accident, would you be making the same argument?
A: I possibly may have been but my argument really is about mental health. If you have car accident perhaps you’re still capable of thinking clearly, whereas mental health, the issues may be different.
KZMS gave further evidence to the Tribunal:
Counsel for Applicant: Ms KZMS, could you please tell the Tribunal when was your most recent hospitalisation?
Other Party: Yes it was in May 2020.
C: And was that a hospitalisation that continued overnight?
OP: No that was for a period of six weeks, that was the longest hospitalisation, I’ve had two in NSW in two years, and that one was for six weeks in May 2020.
C: Was that for six consecutive weeks, where you stayed at night as well?
OP: That’s affirmative, yes.
C: And whilst you were in hospital, who was caring for H?
OP: So I was making all the decisions for H, but H was living with my elderly father who’s 80 and he was bringing H to the hospital every evening after school and I would ring H every morning to get him up in the morning.
C: So H was living with WG was that right?
OP: That’s correct and I was financially supporting H during that time, I was giving my father money for food and instructions for lunches and giving him money to pack lunches how I would normally pack them and he was providing the meals but I was financially doing that and also instructing him what he would eat for lunch for his packed lunches. That’s correct.
C: You mentioned that there were two hospitalisations. Could you please advise the Tribunal of the period of the other hospitalisation?
OP: That was in January 2020 for a period of 21 days.
C: And again was that 21 consecutive days?
OP: That’s affirmative and that was again for a period of rest from stress.
C: Is it fair to say, that part of the respite that you took during that time was respite from day to day decision making and care giving in relation to H?
OP: No, it was for financial stress. So it had nothing to do with day-to-day decisions of H.
CONTENTIONS
Respondent
Given the nature of the current proceedings, essentially a dispute between the father and mother as to the care provided to the child during the relevant period, the Respondent helpfully contended that the Registrar’s role should be confined to assisting the Tribunal in applying the relevant provisions to the evidence. Accordingly, the Registrar did not wish to advance a position as to the findings of fact that the Tribunal is called upon to make.
The Respondent submitted that the issues for the Tribunal’s consideration in this review are as follows:
(a)First, the Tribunal should identify the appropriate care period, starting from 27 October 2019, or other date the Tribunal might identify, to when care allegedly changed (prior to the date of notification).
(b)Secondly, the Tribunal is required to determine whether there was a pattern of care during the care period and, if so, the percentage of care provided by each parent during that period. The Tribunal will need to make findings on the evidence presented by the parties as to their respective levels of care of the child during the care period. In determining care, the Respondent contended the Tribunal should have regard to the relevant factors identified in the Guide, and those referred to by the Court in Polec v Staker and Anor (SSAT Appeal) (2012) 48 Fam LR 530. In Polec, the Federal Magistrates Court held that in determining whether, and to what extent, a person has care of a child for the purpose of child support legislation, the following factors may provide guidance:
(a) To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, childcare, education, health care, emotional support, supervision, transport and extracurricular activities?
(b) To what extent does the person make arrangements for others to meet the needs of the child?
(c) To what extent does the person pay for the costs of meeting the needs of the child?
(d) To what extent does the person otherwise provide financial support for the child?
(e) To what extent does the child provide for his or her own needs or have those needs met from another source?
(f) To what extent is the child financially independent or financially supported from another source?
(c)Thirdly, once the Tribunal has determined the care percentages for the care period, it needs to determine whether the care that took place was in accordance with the existing care percentage determination. If so, the decision under review should be affirmed. If the Tribunal finds different percentages of care in the care period to those determined by AAT1, it must then determine which of ss 54F or 54H is applicable in deciding whether to revoke the existing determination. If the Tribunal decides to revoke the existing determination, it must make a new care percentage determination under ss 49 or 50 and confirm the relevant date of effect thereof.
The Respondent also noted that in relation to delegated care, the Tribunal has previously found in the matter of NLBD v Child Support Registrar [2020] AATA 35 at [33]:
The question of what constitutes delegated care in such a context is a question of fact, to be determined for each day where such care is provided. This involves a number of factors, including who made the arrangements for the delegate care, which parent had responsibility for the child under the care arrangement, whether any financial support is provided by the delegated carer, and the frequency of the delegated care arrangements.
Applicant (RYKB)
The Applicant’s Counsel submitted that by virtue of the Other Party’s mental health and associated hospitalisations, the Other Party does not have 100% care of H.
The Applicant’s Counsel submitted that WG has the care and control of H when the Other Party is admitted to hospital. Therefore, she contended that it is incorrect for the Other Party to receive 100% of the Applicant’s child support payments, as assessed, for H.
The Applicant’s Counsel contended that, in accordance with the CSA Act, the Tribunal must determine the responsible person’s percentage of care for the child during the care period. The percentage must correspond 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”, as required by section 50(3).
The Applicant’s Counsel submitted that, based on the Other Party’s evidence, there were nights where she did not have actual care of H as she had been hospitalised. The Applicant’s Counsel contended that during such period of hospitalisation, the Other Party is in a state where she is not able to have care and control of H remotely, and that this responsibility is left to WG.
The Tribunal, however, is not bound to only consider the nights of care, following the matter of Polec. Noting the findings of Federal Magistrate Hughes as outlined above, the Applicant’s Representative contended that in respect of H’s care, the following factors were relevant:
(a)While the Other Party is hospitalised, accommodation, clothing, food, childcare, education, health care, emotional support, supervision, transport and extracurricular activities are met solely by WG.
(b)While the Other Party is hospitalised, WG makes arrangements for others to meet H’s needs as the Other Party is not able to provide such instruction.
(c)While the Other Party is hospitalised; WG pays for the costs of meeting H’s needs as the Other Party is not able.
(d)The Applicant contended that there is insufficient evidence to prove that the Other Party is otherwise providing financial support for H. Though the Other Party stated previously that “last time I got out of hospital, the day I got out of hospital, dad took me to the ATM and I gave him $500.00 for helping look after H”, the Applicant contended that this money was for WG, rather than for H.
(e)H is 14 years old and is able, to an extent, to provide for his own needs.
Based on the above factors, the Applicant’s Counsel contended that the Other Party does not have 100% care of H. As a result, an assessment of 100% in KZMS’s favour is incorrect, and the current assessment should be revoked.
The Applicant’s Counsel contended that voluminous material had been lodged by her client, expressing his concerns about KZMS’s bona fides, and that there had previously been a change of assessment due to KXMS’s hospitalisation in 2016 as her mental health was so poor that she wasn’t caring for the child. The Applicant’s Counsel asserted that KZMS’ evidence has been inconsistent and that her evidence was ‘” convenient”. She contended that, on the balance of probabilities, as KZMS was hospitalised for stress, it would be open to the Tribunal to find that WG was providing the lion’s share of care during that period.
The Applicant’s Counsel contended that if the Tribunal accepted the Other Party’s evidence that she has been hospitalised for 63 nights, this reduced the nights H was in her care to 302. If H was not in care for 17% of the year it would affect the assessment. The Applicant’s Counsel contended that this was a significant enough period that the assessment should not remain unchanged. The issue comes down to whether the Tribunal accepts the Other Party’s evidence that she was orchestrating care behind the scenes. The Applicant’s Counsel submitted that her client was justified in wanting the assessment to be accurate about the percentage of care, and to reflect what was happening, especially as there was no other way for him to address the issue.
The Applicant’s Counsel clarified to the Tribunal that her submission that at 14 years of age H is able, to an extent, to provide for his own needs, was based on an assumption that children are eligible for Youth Allowance and can get a job at 14.
Other Party (KZMS)
KZMS argued there has been no change in the care of H, and that she continues to provide 100% care to H.
KZMS further argued that as there has been no change in the pattern of care, there is no requirement to make a new care determination.
KZMS contended that while she has been hospitalised, at all times during the period, she was nevertheless responsible for making arrangements for, and decisions about, H's welfare, as well as meeting all his expenses. She stated that WG had been providing for H as any normal grandfather would, by providing accommodation and support to a 14-year-old child whose sole carer was in hospital; but that was the extent of his responsibilities. KZMS stated that at all times she remains responsible for the actual care of H.
CONSIDERATION
There is no dispute that from 2011 until the present RYKB had 0% care of H. RYKB makes no claim to increase his percentage of care of H.
RYKB is disputing whether he has any obligation to pay child support at all. He argues that he has no liability to pay child support for H as the various decision makers, including the Registrar and AAT1, have not appropriately considered the factual evidence which goes directly to the issue of whether the payee was incapable of caring for H; and therefore is ineligible to receive child support.
RYKB relies upon a previous determination of the Registrar in 2016, where it was determined that his obligation to pay child support ceased because of the incapacity and inability of the payee to care for the children due to her mental illness. RYKB asserts this supports his current claim and argues that the payee’s mental illness is ongoing and remains relevant and critical to the decisions of this matter.
The Tribunal is not in a position to make comment on the Registrar’s determination in 2016, nor on the recent determination in respect of Child V, however it was surprised the Registrar had not fulfil the principal object of the CSA Act to ensure that children receive a proper level of support from their parents. Without making comment on the previous decision as it is not before it, the Tribunal was perplexed that RYKB’s obligation to support his children could simply cease.

As with all other child support matters, the Tribunal is required to determine the credibility of the witnesses with limited factual evidence to support the assertions made by the parties about the actual care of the child.
The Tribunal would normally rely on the documentary evidence of the final parenting orders to assess the actual pattern of care for the children, as this is a legally- binding document that the parents accepted from the court, which neither party has sought to challenge. In this matter, the Family Court orders assist the Tribunal, as they clearly state KZMS has had 100% care of H since 2011. But the orders are not determinative, as this dispute goes to the actual care KZMS could provide whilst she was hospitalised. The Tribunal also recognises that the current orders do not reflect the actual care arrangements, as V is no longer in KZMS’ care.
The Tribunal found both parents to be reliable witnesses at the hearing, with neither seeking to obfuscate.
The Tribunal found RYKB did not seek to sugar-coat his firm belief that, as KZMS was incapable of providing care and control of H because of her mental illness, he should be assessed as having no child support obligation. RYKB was straightforward in his position that if he was not required to pay by law then why should he.
The Tribunal found KZMS did not seek to conceal the fact that she had been hospitalised for her mental illness on two occasions for a total of 63 nights, subsequent to RYKB’s appeal to the Registrar in October 2019. KZMS was also open about the fact that her hospitalisation in May for six weeks had been as an involuntary patient.
The Tribunal did not find any of the evidence provided by RYKB, by way of his numerous submissions or emails from KZMS’s relatives, to add any evidentiary weight to assist the Tribunal to determine that H was not in KZMS’s care from October 2019. Indeed, the evidence of KZMS’s hospitalisation in January 2020 and May 2020 could not have been known to RYKB when he lodged his original appeal to the Registrar. RYKB’s assertion about a change in care was based on his interpretation of an email from AC, dated 31 January 2020, which stated:
With H I did ask him does he want to live here swell [sic] but he has decided he wants to stay living with pop and stay at his school. Uncle and his 2 boys live with Pop so he spends a lot of time with them which is good because they go out every weekend doing outdoor boy stuff …. but for now H is happy there with the boys.
The Tribunal takes AC’s email as expressing genuine concern for H’s wellbeing, and the Tribunal would like to applaud AC’s efforts to support her younger siblings. However, her email does not address where KZMS was residing at the time, whether she had been hospitalised prior to 2020, or what care and control she was providing for H. The Tribunal places no weight on AC’s emails and notes Applicant’s Counsel made no submissions on any of the evidence RYKB had provided to the Tribunal prior to the hearing.
The Tribunal accepted the evidence provided by RYKB from NSW Family and Community Services, which acknowledged a documented history of mental illness experienced by KZMS but advises there was currently no indication of issues which raised concern for H’s wellbeing and noted KZMS and H were living with WG.
The Tribunal accepted the evidence provided by the Registrar of the record of interview of WG.
The Tribunal accepted the evidence provided by the Principal of H’s school but placed limited weight on it, as it only reflected what the school had recorded on file about his residential address.
The Tribunal also relied upon the testimony of RYKB and KZMS, given under affirmation, at the hearing.
The Tribunal was ably assisted by all parties, who agreed that care would normally be worked out on the number of nights H was in KZMS’s actual care. But all parties acknowledged the Tribunal is not bound to simply look at the nights of care. Again, the Respondent and the Applicant’s Representative agreed that in such a case the Tribunal is assisted by the Federal Magistrate Court’s findings in Polec and the Guide which clearly states at 2.2.1:
Additionally, in limited circumstances, a person may have care of a child who is not living with them for a period of time. For example, a person can provide care for a child who is at boarding school, in hospital or in separate accommodation. However, a person who simply supervises the child (for example, a baby sitter, a child minder such as a grandparent or a schoolteacher) does not provide care.
Consideration is given to who has responsibility for making arrangements for, and decisions about, the child's welfare, as well as who is meeting the child's costs, rather than just the accommodation arrangements themselves. The Registrar will give weight to statements from both parents and any non-parent carers.
The Tribunal accepts KZMS’s admission that she had been hospitalised on two occasions from January 2020 until the present, which amounted to 63 nights, when H was not living with her. Given this finding, the Tribunal concurs with the Applicant’s Representative that the issue comes down to whether the Tribunal accepts KZMS’s evidence that she was orchestrating care behind the scenes.
The Tribunal does not concur with the RYKB’s belief that during such period of hospitalisation for her mental health issues, KZMS was in a state where she was not able to have care and control of H.
The Tribunal considered the factors outlined by his Honour in the matter of Polec:
(a)To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, childcare, education, health care, emotional support, supervision, transport and extracurricular activities?
The Tribunal finds KZMS has been consistent in her evidence that all times she was meeting the needs of H, be they physical or emotional. That when hospitalised, she was orchestrating all care and control of H behind the scenes. The Tribunal notes her written statement:
A hospital stay by myself mean't H stayed at the house with my elderly Gold Card War Veteran father, WG (80 yrs of age) & my Uncle, (76 yrs of age who does not drive). During this time I made all decisions with respect to H and covered all his financial expenses, right down to advising what H would take in his lunch as at that point H was taking a packed lunch to school. My Uncle or my father, usually my uncle, cooked for H during this time. H would make his own breakfast and my purchased packed lunches for Has I had advised and paid for. My dad bought H into hospital each & everyday to see me and I would give H instructions of what he could & couldn't do with respect to going over to friends houses, bedtimes etc. I called H each & every morning to get H out of bed to bed him up ready for school. This is because my dad goes out to play cards 3 nights per week and would get home very late and sleeps in the mornings. H would get ready and I would get H to wake up dad to get him to the bus. This was just during my hospital stay.
The Tribunal also notes KZMS’s similar evidence given at the hearing:
C: And whilst you were in hospital, who was caring for H?
OP: So I was making all the decisions for H, but H was living with my elderly father who’s 80 and he was bringing H to the hospital every evening after school and I would ring H every morning to get him up in the morning.
C: So H was living with WG was that right?
OP: That’s correct and I was financially supporting H during that time, I was giving my father money for food and instructions for lunches and giving him money to pack lunches how I would normally pack them and he was providing the meals but I was financially doing that and also instructing him what he would eat for lunch for his packed lunches. That’s correct.
…
C: During the periods of hospitalisation, I’ve heard what you’ve said about making phone calls and directing what to be packed for lunch but would it be true to say that it was WG who undertook all of the physical care of H in that time, isn’t it?
OP: That is correct, the physical care but also H wasn’t allowed to go friend’s house, Dad would ring me and say, ‘Is it alright if H goes to his friend’s house this afternoon and I pick him up at 7 o’clock’, and Dad would get my permission. I’m making all decisions to do with that, including, as I said, financially supporting him with food and every other aspect of his life during that time.
C: KZMS I have heard what you’ve said to the Tribunal about decision making and going to friend’s houses, in terms of minutiae of the day-to-day coming’s and going’s H’s life, when you are not there, those decisions fell to your father, that’s right isn’t it?
OP: At that time that’s correct, but remember H was at school all day, so he was at school through the day so I would get him up in the morning, tell him to get dressed, he made his own breakfast, I would remind him to put his lunch in his bag, Dad packed his lunches the night before, and then he would go in and wake Dad up to drive him to the bus. Then he would be in school all day, and then he would catch the bus home, and then Dad would bring him to the hospital in the afternoon. That was what was happening during that time.
The Tribunal finds WG’s statement, which he made to the Child Support Registrar on 20 August 2020, corroborated KZMS evidence that she, not her father, provided care and control for H:
KZMS is in charge of feeding, H, makes all the decisions re his care, and his schooling and does everything, WG advised he sometimes drops H off at the bus stop.
The Tribunal finds there was no evidence to support RYKB’s assertion that whilst KZMS was hospitalised, accommodation, clothing, food, childcare, education, health care, emotional support, supervision, transport and extracurricular activities were met solely by WG.
(b) To what extent does the person make arrangements for others to meet the needs of the child?
The Tribunal finds that KZMS arranged for all of H’s needs to be met including when she was in hospital. The Tribunal finds that she arranged for H to stay with WG, for H to be driven to school, for H to be fed and to visit her each day at the hospital:
C: If there was an emergency, it was your father who would have had to respond at that time?
OP: Yes, or my elderly uncle who also lives at the house, he was also helping me to care for H. If there was an emergency, he would have been there or the next-door-neighbour would have been there if there was an emergency they would have helped out or if there was a real emergency my daughter would have driven down from Brisbane.
C: And so it’s fair to say that you wouldn’t have been able to attend to that at that time, isn’t it?
OP: Well, what sort of emergency are you talking about?
C: You wouldn’t have been able to physically attend to assist H, in any given situation, particularly in emergency, whilst you were in hospital?
OP: I possibly could, it would depend what kind of emergency it was, not for a small incident I wouldn’t have been but if there was a major emergency, then yes, I imagine I would have been able to. Depends what emergency you’re talking about, a car accident, then I would have been able to leave, yes.
The Tribunal finds there was no evidence to support the RYKB’s assertion that whilst KZMS was hospitalised, WG made arrangements for others to meet H’s needs as she was not able to provide such instruction.
(c) To what extent does the person pay for the costs of meeting the needs of the child?
(d) To what extent does the person otherwise provide financial support for the child?
KZMS, in her statement to the Tribunal, clearly identifies all the numerous expenses she is paying for H, including accommodation, food, medical, dental, extra-circular etc. The Tribunal finds there is no evidence to support the claim that another person was meeting these costs. WG’s evidence to the Registrar supported KZMS’s assertion that she continued at all times to provide for H financially, even when hospitalised.
The Tribunal does not find the information provided by WG to be self-serving or unreliable. The Tribunal considers WG was acting as a grandparent, supervising his grandchild while their parent was in hospital, as envisaged by the Guide. Indeed, the Tribunal considered that if WG was indeed seeking to be self-serving, he had the option of seeking to become the nominated non-parent care of H and become the payee.
The Tribunal finds KZMS was consistent in her evidence that she was meeting all of H’s cost of care. The Tribunal found there was no evidence to support RYKB’s assertion that whilst KZMS was hospitalised, WG pays for the costs of H’s needs as KZMS was not able to. The Tribunal found KZMS was consistent in her evidence that she was fully financially supporting H.
(e)To what extent does the child provide for his or her own needs or have those needs met from another source?
(f)To what extent is the child financially independent or financially supported from another source?
The Tribunal finds that, as a 14-year-old child, H was not legally able to leave school, was not eligible for youth allowance and could only secure a job at 14 years and 9 months. As such he had no means to provide for his own needs, be they accommodation, clothing, food, education, health care, emotional support, supervision, transport and extracurricular activities. The Tribunal finds the evidence indicated H was attending school full time during the period in question and there was no evidence H was working or in direct receipt of any social security benefit to meet his financial needs. The Tribunal finds that H has no other means of financial support.
The Tribunal does not accept RYKB’s assertion that, on balance, the evidence demonstrates that KZMS does not have the capacity or capability because of her mental illness, to care for H; and therefore was not eligible to receive a child support obligation for H. The Tribunal finds that an assertion that anyone suffering from a mental illness is not capable of caring for a child is factually incorrect. The evidence from the NSW Family and Community Services confirmed KZMS has a history of mental illness but was not considered a risk to herself or H. There was no evidence that KZMS’s mental illness had impacted her capacity or capability to care for H, as he was still in her care and the family were known to the Department.
The Tribunal finds RYKB had every right to pursue non-payment for his child because of KZMS’s hospitalisation as the Registrar had granted such an application in 2016.
The Tribunal finds there was no change to the pattern of care KZMS provided to H from 27 October 2019. The Tribunal identifies that RYKB’s objection to a change in care could have only commenced from January 2020 when KZMS was first hospitalised.
The Tribunal finds that there has been no change in the care pattern for H when looking at all the factors involved in providing care for a child, as opposed to narrowly focusing on the accommodation arrangements for H when KZMS was hospitalised. The Tribunal considers KZMS was responsible for making arrangements for, and decisions about, H’s welfare, as well as meeting H’s costs while she had been hospitalised.
The Tribunal determines that there was a consistent pattern of care from January 2020 until the present, with KZMS providing 100% care to H and RYBK providing 0%.
As the Tribunal has determined that the care percentages for the care period have not changed, and it is in accordance with the existing care percentage determination, the Tribunal affirms the decision under review.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 90(ninety) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO

............................[sgd]............................................
Associate
Dated: 7 September 2021

Date of hearing: 6 August 2021

Advocate for the Applicant: Ms Alex Metherell

Solicitors for the Applicant: Mr Christopher Ragozzino

Other Party: Self-Represented

Advocate for the Respondent: Ms Katherine Whittemore

Solicitors for the Respondent: Sparke Helmore

[2021] AATA 3219

7 September 2021

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

Date of hearing:	6 August 2021
Advocate for the Applicant:	Ms Alex Metherell
Solicitors for the Applicant:	Mr Christopher Ragozzino
Other Party:	Self-Represented
Advocate for the Respondent:	Ms Katherine Whittemore
Solicitors for the Respondent:	Sparke Helmore