TTJF and Child Support Registrar (Child support second review)

[2018] AATA 875

TTJF and Child Support Registrar (Child support second review) [2018] AATA 875 (10 April 2018)

Division:GENERAL DIVISION

File Number:           2016/4867

Re:TTJF

APPLICANT

AndChild Support Registrar

RESPONDENT

AndZLBT

OTHER PARTY

DECISION

Tribunal:Brigadier A G Warner, Member

Date:10 April 2018

Place:Perth

The decision under review is set aside and substituted with the decision that the existing care determination is revoked on 28 January 2016 and a new care determination is issued from 29 January 2016 to 9 July 2016, which attributes 100% of the child’s care to TTJF and 0% of the child’s care to ZLBT.

....[sgd]....................................................................

Brigadier A G Warner, Member

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.

CATCHWORDS

CHILD SUPPORT- applicant seeks review of decision to issue a new care determination – assessment of actual care – pattern of care – regular care - decision under review set aside and substituted

LEGISLATION

Child Support (Assessment) Act 1989 (Cth) – s 49 – s 50 – s 50(3) – s 54A – s 54F – s 54G – s 54H

Child Support (Registration and Collection) Act 1988 (Cth) – s 4 – s 96A

SECONDARY MATERIALS

Guides to Social Policy Law - Child Support Guide, version 4.31, 3 April 2018 – Chapter 2.2.1

REASONS FOR DECISION

Brigadier A G Warner, Member

10 April 2018

INTRODUCTION

1. The Applicant (TTJF) seeks review of the decision made by the Administrative Appeals Tribunal (Social Services & Child Support Division) (AAT1) on 9 August 2016, varying the decision made by the Department of Human Services (the Department) on 17 March 2016 to attribute 100% of the child's care to TTJF (T8) and 0% of her care to the Other Party, (ZLBT), from 29 January 2016 (T7).

2. The Applicant gave the following reasons for the current application for review:

   I feel a different decision should of been made.  Information I provided wasnt (sic) fully taken into consideration.  No new evidence to support his objection was provided by [ZLBT].  Do not believe law was applied correctly.  There seemed to be a lot of questions not related to the objection/case which I am concerned influenced the decision (T1/2).

3. The Applicant and the Other Party attended the hearing and appeared on their own behalf.  The Applicant’s partner also attended the hearing and gave evidence.

4. The Respondent takes a neutral position in this matter, and provides a statement of facts, issues and contentions to assist the Tribunal to reach the correct and preferable decision and to set out the relevant law.

   BACKGROUND

5. The Applicant is the mother of the child (T4/21). The Other Party to these proceedings is the father of the child.

6. A child support case was registered on 26 July 2004 (T16/83).

7. From 31 July 2015, the Other Party cared for the child 75% of the time and the Applicant cared for her 25% of the time (T2/4).

8. On 3 February 2016, the Applicant informed the Department the pattern of care for the child had changed. The Applicant sought to have the Department amend its records to show she was caring for the child for 75% of the time, from 29 January 2016 (T4/20). On 4 February 2016, the Applicant provided a statutory declaration by her partner dated that day, declaring that the child “… has returned to reside permanently with her mother being [TTJF] commencing the 29^th January, 2016” (T4/21).

9. On 17 March 2016, the Department advised the Applicant and the Other Party that the Applicant was no longer required to pay child support from 29 January 2016 because the amount of time the Other Party spent with the child was not enough to receive child support (T5/22, T6/26). The Department decided to attribute 100% of the child's care to the Applicant and 0% of her care to the Other Party from 29 January 2016 (T2/4). The Other Party was advised that his ongoing child support payment was $1,075 per month (T8/30).

10. On 18 March 2016, the Other Party objected to the Department’s decision, on the basis that the care decision was not correct and that it should be 25% care to him and 75% care to the Applicant from 29 January 2016 (T9/35). On 12 May 2016, the Other Party's objection was disallowed. The Objections Officer was satisfied that the Applicant's care for the child was 100% and the Other Party's care was 0% in the relevant care period from 29 January 2016 to 28 January 2017 (T12/45). The Tribunal notes the distinction between the “relevant care period” in this objection decision, and the “relevant period” central to the present proceedings, that being 29 January 2016 to 9 July 2016.

11. On 25 May 2016, the Other Party lodged an application for review of the Department’s decision with the AAT1 (T2/4).

12. On 20 July 2016, the Department wrote to both the Applicant and the Other Party, with the letters stating in part that the Department had information that the Other Party had the child for 365 nights per year and the Applicant had the child for 0 nights per year from 9 July 2016 (T13/48, T14/50).

13. On 9 August 2016, the AAT1 set aside the decision under review. The AAT1 decision was:

    The tribunal sets aside the decision under review and, in substitution, decides that the existing care percentage determination is revoked on 28 January 2016 and a new determination is issued from 29 January 2016, which attributes 75% of the child’s care to [TTJF] and 25% of the child’s care to [ZLBT] (T2/3).

    ISSUES

14. The Tribunal must decide:

    (a)whether the care determination which is in place for the child should be revoked and replaced with a new care determination; and, if so,

    (b)from what date the new care determination should take effect.

    LEGISLATION AND RELEVANT POLICY

15. The relevant legislation and policy is laid out in Exhibit 5, paragraphs 17-28.

16. The relevant legislation is contained in the Child Support (Assessment) Act 1989 (Cth) (Assessment Act) and the Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act). Reference may also be made to the Child Support Guide (the Guide).

17. The provisions relating to the determination of the percentage of care of a child are contained in Part 5, Division 4 of the Assessment Act. Section 50 states that the Registrar is to determine the responsible person’s percentage of care for the child during the care period having regard to all the circumstances. Subsection 50(3) provides that where a pattern of care is found, the percentage of care for the child during the care period must correspond with the actual care of the child that has occurred, or is likely to occur during the care period.

18. Subsection 54A(1) of the Assessment Act provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out on the number of nights that the child was, or is likely to be, in the care of the person during the care period.

19. Chapter 2.2.1 of the Guide provides that a pattern of care is generally established by using the number of nights in care for the child and the Registrar may consider the patterns of care that have been established in recent months if satisfied that the pattern is likely to continue. The Guide further provides that a care period is generally a 12 month period from the date on which the actual care of a child changed. A care period may commence or end upon a significant change in the actual care of the child.

    EVIDENCE

20. The Tribunal had before it the following evidence:

    ·the “T Documents” (T1-T16, pp 1-90);

    ·the Applicant’s Submissions (8 pages) under cover of email dated 17 February 2017 (Exhibit1);

    ·the Applicant’s email dated 19 December 2016 with attached 10 pages (Exhibit 2);

    ·the Other Party’s Submissions dated 31 January 2017 with attached 4 documents (Exhibit 3);

    ·the Other Party’s Letter dated 13 February 2017 (Exhibit 4);

    ·the Respondent’s Statement of Facts, Issues & Contentions dated 10 March 2017 (Exhibit 5);

    ·the oral evidence of the Applicant;

    ·the oral evidence of the Other Party; and

    ·the oral evidence of the Applicant’s partner.

    RESPONDENT’S ANALYSIS

21. As stated at paragraph 4 above, the Respondent takes a neutral position in this matter. However, the Respondent provides an analysis of the arguments of the Applicant and the Other Party. That analysis is repeated below:

    Analysis of arguments of the Applicant

    …

    30.  On 20 December 2016, the Applicant provided the following documents:

    (a)Copy of the Applicant's calendar from January to July 2016. This does not offer any real insight as to whether the Applicant had ongoing daily care of the child. On 29 January 2016, the Applicant has written “[The child] moved back to live” however there is no corroborating evidence that this occurred.

    (b)Letter from [the family doctor] dated 14 December 2016. [The doctor] states that the child attended "always" with the applicant on certain dates. However, more than half of these dates do not match up with the Applicant's calendar, namely 23 February, 29 February, 10 May and 31 May 2016. The Applicant's calendar is not consistent with the doctor's account. If [the doctor’s] dates are accurate, it does indicate that the applicant met the medical needs of the child on some occasions.

    (c)Receipt/lap time results for the child from… [a sporting event] ... It is not clear whether the applicant and the child… [attended]… together on that date; however, it can probably be inferred that the applicant at least booked the lap race under her name.

    (d)Ticketmaster order history … for [an entertainment event]... This does not show whether the applicant and the child attended this show together.

    31.  On 17 February 2017, the Applicant provided Submissions-in-Reply which comprised of "Annexures."

    (a)Annexures 1(A) to 2(B) all relate to diary entries and letters dating as far back to 2012. However, the period in question is from 29 January 2016 to 9 July 2016. These diary entries do not assist to establish a pattern of care in the relevant period.

    (b)Annexure 3 is a medical certificate in respect of the child, dated 16 February 2017 and refers to the child receiving medical treatment on 20 March 2016. The medical certificate does not state whether the Applicant or the Other Party (or someone else) accompanied the child to that appointment.

    (c)Annexure 4 is a … [letter from the school principal based on] … the 'database' of the Western Australian Education Department's database and 'believes' the child resided at the Applicant's address from 29 January 2016 until 9 July 2016. The letter provides only limited assistance in establishing whether the child was actually in the Applicant's care during that time but is merely based on information held in a database.

    Analysis of arguments of the Other Party

    32.  On 2 February 2017, the Other Party provided the following documents:

    (a)Letter from the Other Party's employer stating that he has "maintained one week leave through school holiday periods." However, there is no corroborating evidence that the Other Party spent that time, during the school holiday periods, with the child.

    (b)Statutory declaration from [X]. [X] declares that the Other Party “has always sought annual or unpaid leave during the school holidays to enable him to spend quality time with his daughter [the child]. We have shared many camping trips over the past 10 years … with both he and [the child].” The statutory declaration does not specify exactly what periods that the Other Party sought annual/unpaid leave to spend time with the child, or which periods that [X], the Other Party or the child attended these camping trips.

    (c)A 'note' from the Other Party that for 7-8 months prior to "January 29" the child was living with him. Again, this is merely his assertion and not supported by contemporaneous evidence.

    (d)The Other Party's calendar for 2016. This does not offer any real insight as to whether the Other Party had ongoing daily care of the child

    33On 16 February 2017, the Other Party provided an additional handwritten note which is faint and difficult to read. As best can be understood, the Other Party seeks to explain that he did not "get to see" the child in the school holiday period in April 2016 as he was… [overseas]. The Other Party explains that the child did not accompany him because the child's passport had expired.

    Conclusion

    34Based on the submitted evidence of the Applicant and the Other Party, it is difficult to even identify the dates that the parties claim the child was in their care. The Respondent contends that both the Applicant and the Other Party should be required to provide care maps and provide a table at the hearing highlighting the dates on which they disagree only. The submitted evidence does not otherwise establish the number of nights the child was in either party's care, nor does it assist in establishing a pattern of care (Exhibit 5, paras 30-34).

    CONSIDERATION

22. The Respondent summarises the AAT1 consideration as follows:

    The AAT1 considered that it must revoke the existing determination if it decided that from 29 January 2016, it was likely the Other Party would have 65% or less of the child's care and the Applicant would have 35% or more of the child's care in the “forthcoming period”, because such changes resulted in a cost percentage change: s 55C (see T2, 5[10]). The AAT1 set out the relevant policy in the Child Support Guide (at T2, 5[11]-[12]). The AAT1 set out the parties' evidence (T2, 5[13]-[18]) and concluded that when the Applicant notified the Department on 1 February 2016 of a change care pattern for the child from 29 January 2016, the pattern of care intended by the parents was that the child would spend 75% of her time with the Applicant and 25% of her time with the Other Party (at T2, 6[19]). The AAT1 noted that the Applicant informed the Department on 1 February 2016, about a change in care that occurred on 29 January 2016. The AAT noted that s 54F(2) provided that if the Department was notified of a change in care within 28 days of it occurring, the date of effect of the change is the date the care changed (at T2, 6[20]) (original emphasis) (Exhibit 5, para 15).

23. The AAT1 decision includes the following account of the Applicant’s evidence before that Tribunal:

    [TTJF] said she anticipated the child being in her care for 75% of the time from 29 January 2016.  She said she did not intend that the child would not maintain regular contact with [ZLBT]. The Department’s papers record that when [TTJF] contacted it on 2 February 2016, she advised that [ZLBT] was caring for the child 94 nights of the year (25% of the time) and she was caring for her for 271 nights of the year (75%). However, she said when she was contacted by the Department weeks later she was asked what the actual care arrangement was and she said the child was with her for 100% of the time. [TTJF] said she felt obliged to answer truthfully.

    [TTJF] told the tribunal she intended for the percentage to be changed to 75% to her and 25% to [ZLBT] from 29 January 2016, and she was not looking for the record to reflect that she had 100% of the child’s care. She said she was content to allow the percentage attributions to remain at 75% to her and 25% to [ZLBT] because she anticipated the child would spend time with him (T2/6, paras 17-18).

24. Before this Tribunal, the Applicant agreed with the AAT1 evidence detailed above. In relation to the Respondent’s analysis of her arguments (see paragraphs 21 above), she told the Tribunal that:

    ·her calendar for the period January to July 2016 (Exhibit 2, attachment 1) was completed contemporaneously and not produced until later for the purposes of these proceedings;

    ·she had attended the doctor with the child (Exhibit 2, attachment 2);

    ·she attended the sporting and entertainment events with the child, and that the child was residing with her on those dates; and

    ·during the period 29 January 2016 to 9 July 2016, the child spent no more than 10 nights with the Other Party and this represented approximately 6% rather than 25% of the time. She opined that the Other Party incurred limited financial outlays with respect to the child during those 10 days.

25. The Other Party understandably found participation in the present proceedings difficult. He told the Tribunal that he was unable to offer much more evidence, and was unable to say precisely when the child stayed with him. He did not contest the Applicant’s contentions recorded in the preceding paragraph, and said that whatever the decision in the present proceedings, he would not engage in further appeals or reviews.

26. The Other Party said that he had seen the child whenever possible, but on occasions had deferred to the Applicant’s wishes and requirements. He referred to the circumstances causing him to miss spending time with the child during school holidays in April 2016, and the Applicant’s failure to renew the child’s passport (which expired during the previous year) and thus precluding her from travelling overseas with him for a wedding at Easter 2016, as illustrative of occasions when he had not seen the child as expected and planned (see also Exhibit 4).

27. The Other Party recognised that despite the provisions or expectations of any court orders or agreements, he considered the child was old enough at the relevant time to make her own decisions.

28. Both the Applicant and the Other Party confirmed that at the relevant time there was a court order in place regarding the child’s care but that that it had not been adhered to for some time (see also T12/44).

29. In his oral evidence, the Applicant’s partner confirmed his statutory declaration dated 4 February 2016, that the child “… has returned to reside permanently with her mother being [TTJF] commencing the 29^th January, 2016” (T4/21). He said that the child had pretty much stayed with the Applicant thereafter. 

30. The Tribunal agrees with the Respondent’s conclusion at paragraph 21 above, particularly as it relates to the calendars/diaries covering the relevant period 29 January 2016 to 9 July 2016 submitted by both parties (Exhibit 2, attachment 1; Exhibit 3, attachment 4). However, after carefully considering the oral evidence, the Tribunal is reasonably satisfied that the Applicant’s evidence represented the actual care of the child during the relevant period. Consequently, the Tribunal is also satisfied that in all the circumstances, the Other Party did not have at least regular care of the child during the period 29 January 2016 to 9 July 2016.

31. The existing care determination must be revoked where:

    ·the new care percentage determination affects the cost percentage (being the percentage of a child’s costs the parent meets directly through care: s 54F of the Assessment Act); or

    ·under the new care percentage determination, one of the parents who was previously assessed to have at least regular care (14% care) of the child is now determined to have less than regular care despite the child being made available by the other parent: s 54G of the Assessment Act.

32. The objection decision dated 12 May 2016 stated in part: “When calculating the pattern of care each parent has of the child, we do not consider minor departures from the normal care of the child… Such minor departures do not constitute a change to the pattern of care… In accordance with section 50, I am satisfied that [TTJF]’s care for [the child] is 100% and in accordance with section 49, [ZLBT]’s is 0% in the relevant care period (29 January 2016 to 28 January 2017)” (T12/45). It follows from paragraph 30 above that the actual care of the child in the relevant period reflects the objection decision.

1. The date of effect of a change of care depends upon when the Registrar is notified of the change. If the Registrar becomes aware of a change of care within 28 days of the change, the assessment will be amended using the new percentage of care from the date the change of care occurred: s 54F(2) of the Assessment Act. In this matter, 29 January 2016 is the date established in the antecedent decisions and is not in dispute.

2. The AAT1 noted that “… [ZLBT] advised the Department of a changed care pattern from 9 July 2016, and the child care percentages from that date are currently under review by the Department” (T2/7). This change is not a consideration in the present proceeding.

   CONCLUSION

3. In commenting on the Tribunal’s assessment of the evidence of the parties, the Respondent submits:

   … If the Tribunal finds that the evidence of the Applicant is more reliable than the  Other Party’s… the appropriate order is that the decision under review be varied, after the Tribunal has determined the pattern of care and number of nights in care that the child was in the Applicant and Other Party’s care (Exhibit 5, para 35).

4. Having carefully considered all the material before it and the circumstances of this matter, the Tribunal is satisfied that the child was in the care of the Other Party for no more than 10 nights during the relevant period 29 January 2016 to 9 July 2016.

   DECISION

5. The Tribunal decides that it is appropriate to set aside the decision of the AAT1, revoke the care percentage determination made in that decision, and make a new determination from 29 January 2016, attributing 100% of the child’s care to the Applicant and 0% to the Other Party during the period 29 January 2016 to 9 July 2016.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, Member

....[sgd]...................................................................

Associate

Dated: 10 April 2018

Date of hearing:	26 October 2017
Applicant:	In person
Representative for the  Respondent:	Ms A Wong
Solicitors for the Respondent:	Mills Oakley Lawyers
Other Party:	In person