TZBP and Child Support Registrar (Child support second review)
[2024] AATA 108
•31 January 2024
TZBP and Child Support Registrar (Child support second review) [2024] AATA 108 (31 January 2024)
Division:GENERAL DIVISION
File Number: 2019/1193
Re:TZBP
APPLICANT
AndChild Support Registrar
RESPONDENT
AndJMRN
OTHER PARTY
DECISION
Tribunal:L M Gallagher, Member
Date:31 January 2024
Place:Perth
The Reviewable Decision is set aside and substituted with a decision that:
(a)The care period commenced on 17 April 2018.
(b)The care period ended on 21 February 2019.
(c)The Applicant had 85% care of the children and the Other Party had 15% care of the children during the care period.
(d)The date of effect of the new percentage of care determination is 14 July 2018.
........................[Sgd].........................................
L M Gallagher, Member
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
CATCHWORDS
CHILD SUPPORT – percentage of care – whether there was a change in care – actual care – date of effect – evidence – decision under review set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act (1975) (Cth) - s 43(6)
Child Support (Assessment) Act 1989 (Cth) (the Assessment Act) - ss 49, 49(1)(a), 49(1)(b), 50, 50(1)(a), 50(1)(b), 50(3), 51, 54A(1), 54A(3), 54B, 54F, 54F(3), 54G, 54G(2), 54H, 54H(3), 55C
Child Support (Registration and Collection) Act 1988 (Cth) - (the Collection Act) ss 87AA(1), 87AA(2), 95N(1), 95N(2)Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (Cth) (the Amendment Act)
CASES
Afghani and Secretary, Department of Social Services [2017] AATA 410
Angelakos and Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Beadle and Director-General of Social Security (1984) 6 ALD 1
Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531
Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Dranichnikov v Centrelink [2003] FCAFC 133 [66]; [2003] FCAFC 133; (2003) 75 ALD 134
Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541
Minister for Home Affairs v G and Another [2019] FCAFC 79
P v Child Support Registrar [2013] FCA 1312
Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562
Polec & Staker & Anor [2011] FMCAfam 959
Shanhun and Secretary, Department of Social Services [2016] AATA 675
Singleton and Secretary, Department of Social Services [2019] AATA 766TZBP and Child Support Registrar [2020] AATA 19
SECONDARY MATERIALS
Guides to Social Policy Law: Child Support Guide
REASONS FOR DECISION
L M Gallagher, Member
31 January 2024
THE APPLICATION
The Applicant seeks review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal, (AAT1) dated 17 January 2019, that from 17 April 2018 to 28 April 2019 the Applicant had 83% care of the children and the OP had 17% care, with effect for child support purposes from 14 July 2018 (the Reviewable Decision). [1]
[1] R1, T2.
ISSUE
The issue for determination by this Tribunal, being the General Division of the Administrative Appeals Tribunal (the Tribunal) is the Applicant’s and the Other Party’s respective percentages of care of the children from the relevant commencement date.[2] Specifically:
[2] The relevant commencement date, being the date on which the change of care occurred (if indeed the Tribunal finds a change in care did occur), are findings of fact addressed by the Tribunal below. As the care period is now in the past, these percentages must correspond to the actual care that took place during that period.
(a)Whether the existing determination of percentage of care made by the AAT1 on 17 January 2019 should be revoked and replaced. This requires the Tribunal to determine what percentage of care the applicant and the Other Party each had of the children from the relevant commencement date.
(b)If so, that is, if the Tribunal finds that there was a change in the percentage of care from the relevant commencement date, such that the care percentage determination in effect at that date should be revoked and a new determination of percentage of care should be made:
(i)What is the new percentage of care determination?
(ii)What is the date from which the new percentage of care determination should have effect for the purposes of child support? Generally speaking,[3] this date would be either:
·From the date the objection was lodged,[4] which was on 14 July 2018; or
·From the date that the change in care was notified, being 8 May 2018.
o This will be the case only if there were ‘special circumstances’ that prevented the objection from being lodged at the time it was required to be lodged, namely within 28 days of the original decision.[5]
o The period of time falling for consideration in the context of special circumstances is the period between 8 May 2018, when the original decision was made, and 14 July 2018, when the objection was lodged.[6]
[3] However, see further discussion at paras [23]–[25] below.
[4] Section 87AA(1) of the Collection Act provides that where an objection is not lodged within 28 days of a percentage of care determination, and the objection is allowed in a way that has the effect of varying the percentage of care determination or substituting a new care percentage determination, the objection decision will have effect from the date the objection was lodged.
[5] Section 87AA(2) of the Collection Act provides that the Registrar may determine that the 28-day objection period be extended to such longer period as the Registrar determines appropriate if the Registrar is satisfied that special circumstances prevented the objection being lodged within the stipulated timeframe. In that situation, the objection decision has effect as if the objection were lodged within the 28-day timeframe and therefore will have effect from the date that the original decision had effect (being 8 May 2018 in the present matter).
[6] In the present case, the Other Party did not lodge his objection until 14 July 2018, which was more than 28 days after notice was given of the Original Decision on 8 May 2018. The objections officer was not persuaded that special circumstances prevented the objection from being lodged within 28 days, and so declined to make a determination under s87AA(2) of the Collection Act. Further, there has been no request for review of the Objection Decision not to make such a determination. Therefore, the Tribunal does not have jurisdiction to review that decision and any decision made can only have effect from the date the objection was lodged (14 July 2018). This means that the Objection Decision had effect for child support purposes from 14 July 2018.
The Tribunal emphasises that if, and only if, it is established that the existing determination of percentage of care made by the AAT1 on 17 January 2019 should be revoked and replaced that the remaining issues fall for consideration.
BACKGROUND
The Applicant and the Other Party are the separated parents of two children. The present application relates to both of those children.
On 8 May 2018, a child support case was registered in relation to the children.[7] On that date, the following decisions were made regarding the percentage of care of the children:[8]
(a)The child support assessment commenced on 10 April 2018.
(b)From 10 April 2018 to 16 April 2018, the Applicant had 100% care of the children.
(c)From 17 April 2018 there had been a change in care of the children, with the Applicant having 87% care of the children and the Other Party having 13% care of the children.
(the Original Decision).
[7] R1, T5.
[8] R1, T5.
The Original Decision stated that the parties could request review of the decision within 28 days from the date of receipt and provided further information on how to proceed with an objection.[9]
[9] R1, T5.
On 14 July 2018, the Other Party objected to the Original Decision, on the basis that he has minimum of 57 nights care of the children per year.[10]
[10] Respondent’s Statement of Facts, Issues and Contentions dated 25 May 2021 (SFIC), Attachment A.
On 12 September 2018, an objections officer of the Agency allowed the Other Party’s objection and decided that that Applicant had 87% care of the children and the Other Party had 13% care of the children from 17 April 2018, with effect for child support purposes from 14 July 2018 (the Objection Decision).[11]
[11] R1, T17.
On 10 October 2018, the Applicant applied to the AAT1 for a first review of the Objection Decision.[12]
[12] R1, T21.
On 17 January 2019, the AAT1 made the Reviewable Decision.[13]
[13] R1, T2. See [1] above.
On 5 March 2019, the Applicant applied to the Tribunal for review of the Reviewable Decision.[14]
[14] R1, T1.
On 7 May 2019, the Other Party applied for the present application to be dismissed on the grounds it was ‘vexatious and not in the interests of our children who have a right to pend time with and know both of their parents.’
On 10 January 2020, the Tribunal refused the Other Party’s application for dismissal.[15]
[15] TZBP and Child Support Registrar [2020] AATA 19.
LEGISLATIVE FRAMEWORK
The relevant legislation is contained within the:
(a)Child Support (Assessment) Act 1989 (Cth) (the Assessment Act); the
(b)Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act); and the
(c)Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (Cth) (the Amendment Act).[16]
[16] The Amendment Act came into effect on 23 May 2018. Relevantly, the Amendment Act amended some provisions of the Assessment Act. If the Tribunal were to decide that there was a change in care in April 2018, the legislation in force prior to the Amendment Act applies.
The relevant policy is contained in the Guides to Social Policy Law: Child Support Guide (the Guide). As established in Minister for Home Affairs v G and Another [2019] FCAFC 79 (G), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[17]
[17] G at [57]-[62].
The Assessment Act requires the Registrar to determine a person’s percentage of care where a person has had, or is likely to have:
(a)no pattern of care for the child (s 49(1)(a) of the Assessment Act);[18] or
(b)a pattern of care that corresponds with the actual care[19] of the child
(ss 50(1)(a) and 50(3) of the Assessment Act),[20]during such period (the care period)[21] as the Registrar considers, having regard to all the circumstances.
[18] The Tribunal notes in this context that the Applicant claims to have had 100% care of the child during the care period.
[19] Section 54A(1) of the Assessment Act provides that the actual care of a child that a person has or is likely to have had may be worked out on the number of nights of care. The concept of ‘care,’ however, is broader than the provision of accommodation on any given night, and percentage of care does not necessarily need to be determined by reference to a time-based calculation (Polec & Staker & Anor [2011] FMCAfam 959 [56]; P v Child Support Registrar [2013] FCA 1312 at [107]; and P v Child Support Registrar [2014] FCAFC 98 [47]. See also Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562 [33].[20] The Tribunal notes in this context that in the present matter, there is no dispute that the Applicant had a pattern of care during the care period.
[21] A ‘care period’ does not have any fixed duration and is generally a 12-month period from the day on which the actual care of a child changed, however there are some circumstances in which a shorter or longer period may be more appropriate (the Guide at 2.2.1). In any event, the relevant care period is now in the past and as such the Tribunal is required to determine the actual care that occurred during the relevant period.
If there has been a change in the pattern of care subsequent to a percentage of care determination, a new percentage of care determination can be made only if the existing percentage determination that was made under ss 49 or 50 of the Assessment Act in respect of a particular care period is revoked, under Subdivision C of Division 4 of Part 5 of the Assessment Act (ss 49(1)(b) and 50(1)(b) of the Assessment Act).[22]
For completeness, s 51 of the Assessment Act may apply in circumstances where a care arrangement, such as a Court order, applies in relation to a child or children, but actual care does not or did not comply with the relevant care arrangement.[23]
[23] In the present matter, a Court order was in place outlining care of the children between 16 April 2018 and 4 October 2018 (R1, T4). Neither the Applicant or the OP suggested to the Tribunal that the Court order was not complied with. Accordingly, s 51 of the Assessment Act does not apply.
An existing percentage of care determination must be revoked where the care of a child has changed pursuant to, relevantly:
(a)Section 54F of the Assessment Act – there is a change to the person’s cost percentage, that is, the percentage of a child’s costs that the person meets through care.[24]
(b)Section 54G of the Assessment Act – where, under the new percentage of care determination, a responsible person who was previously assessed to have at least ‘regular’ care of the child is now determined to have ‘less than regular care’[25] of the child, despite the child being made available by the other responsible person.
(c)Section 54H of the Assessment Act – where the Registrar is notified, or otherwise becomes aware, that the existing percentage of care determination does not reflect the care that is taking place. In these circumstances, the Registrar may exercise its discretion to revoke the existing percentage of care determination but is not required to.
[24] For a cost percentage to apply, s 55C of the Assessment Act provides that the minimum care percentage is 14%. Therefore, ss 54F and 54G of the Assessment Act are enlivened only if the Tribunal were to find that the Applicant had at least 14% of the care of the child.
[25] In this context, ‘regular care’ is defined to be at least 14% to less than 35% of the care of the child (the Guide at 2.2.1). As to determining whether care exists, further refer to the Guide at 2.2.1.
If ss 54F, 54G or 54H of the Assessment Act do not apply, the existing percentage of care determination cannot be revoked and will continue to apply.[26]
Subsections 54F(3) and 54H(3) of the Assessment Act explain when a revocation of a care percentage determination made under those provisions takes effect:
(a)If the Agency was advised of the change in the care arrangements within 28 days of that change occurring, the revocation takes effect on the day before the change in care.[27]
(b)However, if notification occurs more than 28 days after the change in care arrangements, the revocation of the care determination takes effect on the day before the day the Agency was notified of the change in care.
[27] As in the present case. The Agency was notified of the change in care on or around 18 April 2018 (T1, T27, p 295). As this was within 28 days of the date of the care change, the revocation will take place from the end of the day before the change of care date (that is, 16 April 2018 if the date of care change is accepted to be 17 April 2018).
Similarly, ss 54G(2) of the Assessment Act similarly provides when a revocation of a care percentage determination made under that provision takes effect. If the parent who has less care never had regular care under the existing care determination, the revocation takes effect from the date of the existing care determination. Otherwise, the revocation has effect on the day before the parent ceased to have regular care.
Further, s 54B of the Assessment Act effectively provides that, if a determination is made in relation to percentage of care, the determination will apply to each day in the child support period on and from the ‘application day,’ unless the determination is revoked.[28]
[28] In the present context, if the percentage of care determination is revoked under s54G of the Assessment Act, the ‘application day’ refers to the day on which the responsible person ceased to have the previously established pattern of care. If the determination is revoked under a different provision in the Assessment Act, the ‘application day’ refers to the day immediately after the revocation of the existing determination.
Date of effect
By s 43(6) of the Administrative Appeals Tribunal Act (1975) (Cth), if the Tribunal finds that the reviewable decision should be varied or set aside, the Tribunal’s decision becomes a decision of the Registrar, with effect from the date of effect of the decision under review.
However, if an application for review is made more than 28 days after notice of the objection decision was given, any decision made by the AAT1 which varies or substitutes the objection decision will only have effect on and from the day on which the application for review by the AAT1 was lodged.[29]
[29] Section 95N(1) of the Collection Act.
The exception to this rule is if the Applicant satisfies the AAT1 that there were special circumstances which prevented them from applying for AAT1 review within the prescribed 28 day period.[30]
[30] Section 95N(2) of the Collection Act.
Tribunal and judicial authorities regarding ‘special circumstances’ establish that they must objectively be ‘unusual’, ‘uncommon’ or ‘out of the ordinary’.[31]
[31] Beadle and Director-General of Social Security (1984) 6 ALD 1, 3 (appeal to the Federal Court of Australia dismissed: [1984] AATA 176; (1985) 7 ALD 670); Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541, 545; Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531 [18]; Dranichnikov v Centrelink [2003] FCAFC 133 [66]; [2003] FCAFC 133; (2003) 75 ALD 134, 148; Angelakos and Secretary, Department of Employment and Workplace Relations [2007] FCA 25 at [33]; and Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114.
Secondly, those special circumstances must have ‘prevented’ the applicant from making its claim within time. The Tribunal has previously held that the word ‘prevented’ carries its ordinary, everyday meaning being ‘to “hinder, or stop”’.[32] In this regard, it is not sufficient for circumstances to make it difficult or challenging; the special circumstances ‘must have been such that they served as an insurmountable block, hindrance or impediment to the lodgement taking place within the required timeframe’.[33]
[32] Afghani and Secretary, Department of Social Services [2017] AATA 410 [62]; Shanhun and Secretary, Department of Social Services [2016] AATA 675 at [38].
[33] Singleton and Secretary, Department of Social Services [2019] AATA 766 [42].
EVIDENCE
The matter was heard in Perth on 2 June 2023. The Applicant and the Other Party were self-represented. The Other Party appeared with the support of his parents. The Respondent was represented by Ms Laura Hinwood, Lawyer, of Services Australia.[34] All parties and support persons appeared via telephone and no witnesses were called.
[34] Given the nature of the present application, the Respondent proceeds on the basis that its role should be confined to assisting the Tribunal in identifying and applying the relevant provisions to the evidence. Accordingly, the Registrar gave no evaluation of the available evidence, did not advance a position as to the findings of fact the Tribunal is called upon to make and made no submissions as to what the correct and preferable decision in this matter is.
The Tribunal admitted the following documents into evidence:
(a)Email from the Applicant to the Respondent dated 24 May 2023, with 18 attachments (A1); and
(b)Hearing book filed on 30 May 2023, consisting of 1108 pages (R1).
The Respondent also filed a SFIC.
The Applicant provided the following documentary evidence:
(a)A1;
(b)Correspondence dated 18 April 2018, with attached Court Orders dated 28 March 2018 (R1, T4).
(c)Correspondence dated 8 August 2011 (R1, T11);
(d)Correspondence dated 20 August 2018 (R1, T14); and
(e)Application for review of the Objection Decision (R1, T21).
The Other Party provided the following documentary evidence:
(a)Correspondence dated 18 June 2018, with attachments (R1, T6);
(b)Correspondence dated 31 July 2018, with attachments (R1, T9);
(c)Correspondence dated 17 August 2018, with attachments (R1, T12);
(d)Correspondence dated 21 August 2018, with attachments (R1, T15); and
(e)Correspondence dated 21 December 2018, with attached Court Orders dated 18 November 2017 (R1, T25).
The Respondent’s file notes of conversations with both parties are contained in R1.[35]
[35] See R1, T27.
The Tribunal is satisfied that all the relevant evidence was before the Tribunal and that the parties were provided an opportunity to address it, either orally or in writing.
The parties’ evidence
The parties appear to agree that care of the children changed on 17 April 2018 in accordance with the Court order[36]. The parties disagree on the amount of actual care they each had of the children from that date for the care period that followed[37]. Therefore, the Tribunal has focused on the evidence relating to actual care during this period.
[36] See R1, T4.
[37] This period being 17 April 2018 to 21 February 2019, being the day before the new care determination came into effect on 22 February 2019.
The Applicant and the Other Party gave evidence and made submissions in support of their respective positions, in writing and orally at hearing. [38]
[38] See A1 and within R1; transcript, pp21-42.
The Applicant submitted that late in 2021, she confirmed with an Agency officer that while Court orders were observed, the Other Party did not have more than 13% (51 nights) in a 12 month period from April 2018 to April 2021.[39]
[39] A1.
The Applicant added that she is not disputing that the Applicant will have regular care from April 2021 onwards, however for the preceding years (2018, 2019 and 2020), the Other Party’s actual level of care was less than 51 nights.[40]
[40] A1.
The Applicant gave evidence that the children were in the Other Party’s care during the day on 16 April and from the conclusion of the family report interviews on 17 April 2018 to 23 April 2018 in accordance with the Court Order.[41]
[41] Transcript, p21.
The Applicant said that on 24 April 2018, the Other Party returned the children to her care and she flew with them from Alice Springs back to Perth.[42]
[42] See copy of flight bookings (A1, Attachment 1).
The Applicant said that in June 2018, the Other Party asked for contact with the children, so the children were booked on flights to and from Alice Springs on 8 June 2018 and 12 June 2018, respectively.[43]
[43] See copy of flight bookings (A1, Attachment 3).
At hearing, the Applicant added:
…[O]n 12 June they did not return into my care because JMRN was on the telephone with the child support agency setting out that he has 51 nights and he wants more nights for the children to be in his care and decided in the document that he has yet to determine when they will be travelling back to myself.
At the time of the flight departure he was on the phone with the child support agency and did not return the children. He said to me that Qantas had (indistinct) the plane was overloaded.
I talked to Qantas and they said there’s no such thing between Alice Springs and Perth because there’s probably not people travelling that way.
So the children (indistinct) into my care on 13 June[44] (indistinct) child support purposes.
[44] See copy of flight bookings (A1, Attachment 3).
Then the next period was from 1 July to 12 July,[45] which again JMRN asked me if I would change that to accommodate his birthday, which I did.
[45] See copy of flight bookings (A1, Attachment 4).
So the children left on 2 July and again on 13 July JMRN was on the telephone with the child support agency by lodging his next objection.
So then the children were in his care from 23 September until 3 October[46], and then on 19 January until 1 February[47] and returning to my care on 2 February[48] [where they remained]…
…
…that period was a time of contention and for JMRN alleged I fabricated medical information in order to extort money from him and that the Administrative Appeals Tribunal was party to extortion as well. Now I submitted in the documentation quite extensive evidence that the youngest child, Child E, he had legions on his brain which were suspected cancer or tumours at that time, and he was ordered to Perth Children’s Hospital for MRIs.
…
So he had two MRIs down there. They could have not been done in Albany because there is [sic] no facilities here that deal with children that do that test so and I have at all times tried to put it forward so the children could go and fly to him. It wasn’t medically not advised for Child E to fly. ..
So and I have a letter from our GP in Albany[49] as well stating the fact that I was within my rights being, you know, concerned for the child’s welfare and safety for him not to fly until I had the final go ahead and say okay, he’s not going to, you know, just drop dead.
…
So and I think that’s reasonable, and I have at all times kept JMRN informed about all the things that have been going on. I had one email where there was some concern for Child E and then it just turned around and I was just the bad mother. You know, just withholding the children.
…
And so I have made, you know, all what is in my power to do. I have always tried to agree with JMRN because otherwise I know I find myself back in court.
[46] See copy of flight bookings (A1, Attachment 5).
[47] See copy of flight bookings (A1, Attachment 6).
[48] See copy of flight bookings (A1, Attachment 7).
[49] See R1, pp541-542.
When invited to comment or respond to the Applicant’s estimated periods of when the children were in the Other Party’s care, or to put forward his own estimates, the Other Party stated:[50]
Look, I’ll agree with what’s there because it’s a no-brainer. It’s done and dusted, let’s go home.
Adding:
The [A]pplicant unilaterally refused to place our kids on the plane. She cites the medical conditions for Child E, our youngest child, and refuses to allow contact for our eldest child, Child O, and I could not get any clear medical reason for them not to be put on the plane. The [A]pplicant cites a faux-medical condition. I spoke to the attending doctor, and I was advised that no such condition preventing flying existed.consideration
Whether the existing determination of percentage of care made on 17 January 2019 should be revoked and replaced
[50] See R1, T1, p 5. The Tribunal notes these dates and periods are consistent with those provided by the Applicant in A1, Attachment 2 and with the evidence provided to the AAT1 (see R1, T2).
The first matter for the Tribunal’s consideration is whether the existing determination of the percentage of care made on 17 January 2019, being that:
From 17 April 2018 to 28 April 2019, the Applicant had 83% care of the children and the Other Party had 17% care of the children, with effect from 14 July 2018,
should be revoked and replaced.
If not, then the existing percentage of care determination remains in place and that ends the Tribunal’s consideration of the matter.
This requires the Tribunal to determine what percentage of care the Applicant and the Other Party each had of the child during the care period, and, if there was a change in care, from what date that change in care occurred.
Was there a change in care? If so, on what date did the change in care occur and what is the date of effect?
The Applicant and the Other Party agree that a change in care occurred and that the date of this change was 17 April 2018, in accordance with the Court Order.
The Tribunal has reviewed the Court order and the parties evidence regarding what in fact occurred on and around that date and agrees with the Parties as to the date the change in care occurred.
The relevant care period has passed. It is uncontroversial that the care period is 17 April 2018 to 21 February 2019, being from the date the change of care occurred to the day before the new care determination came into effect on 22 February 2019.
While the Other Party has expressed his discontent with how the actual amount of care came to be during the care period, at the hearing he conceded that the days of care each party had during the care period as set out by the Applicant was technically correct.
The Tribunal has considered the documentary evidence before the Tribunal in the present matter as to the amount of care. In particular, the Tribunal relies upon the Applicant’s calendar, her records of flights booked and taken by the children[51] and her evidence at hearing.
[51] For example, A1 and related attachments, T1, pp 4 and 5 and R1, p541.
The Tribunal is satisfied that the Applicant has been consistent over time regarding her claimed actual care that she and the Other Party respectively had at the relevant time and that her documentary evidence is internally consistent with her oral claims.
The Tribunal considered the Applicant to be a credible witness, who gave a detailed and clear historical account of her own recollection of the division of care between herself and the other Party during the care period.
As such, and without any responsive evidence from the Other Party other than his verbal agreement at hearing, the Tribunal accepts the Applicant’s evidence as to the care of the children during the care period.
That is, the Tribunal finds that from 17 April 2018 to 21 February 2019, the Other Party had care of the children as follows:[52]
(a)For 6 nights from 17 April 2018 to 23 April 2018;
(b)For 5 nights from 8 June to 13 June 2018;
(c)For 11 nights from 2 July 2018 to 13 July 2018;
(d)For 11 nights from 23 September 2018 to 4 October 2018; and
(e)For 13 nights from 19 January 2019 to 1 February 2019,
totalling 46 nights.
[52] For completeness, the children were in the Applicant’s care on the remaining nights during the care period.
Therefore, applying these factual findings, the Tribunal also relevant finds, for present purposes:
(a)The existing determination of percentage of care made on 17 January 2019 should be revoked and replaced.
(b)The new percentage of care determination is:
(i)Applicant – 85% care of the children.
(ii)Other Party – 15% care of the children.
(c)The relevant commencement date is 17 April 2018, being the date on which the Tribunal has found the change in care occurred. The care period ends on 21 February 2018.
(d)The date from which the new percentage of care determination should have effect is 14 July 2018, being the date the objection was lodged and in circumstances where special circumstances have not been claimed and otherwise do not apply.[53]
[53] See fns 4 and 6 above.
CONCLUSION
The Tribunal has found that there is sufficient evidence to disturb the existing percentage of care determination currently in place between the Applicant and the Other Party. As such, the Tribunal concludes that the existing care determination of percentage of care made on 17 January 2019 should be revoked and replaced with the decision set out at paragraph 59 below.
DECISION
For the reasons outlined above, the correct or preferable decision is to set aside the Reviewable Decision and substitute it with a decision that:
(a)The care period commenced on 17 April 2018.
(b)The care period ended on 21 February 2019.
(c)The Applicant had 85% care of the children and the Other Party had 15% care of the children during the care period.
(d)The date of effect of the new percentage of care determination is 14 July 2018.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member
........[Sgd]..........................................................
Associate
Dated: 31 January 2024
Date(s) of hearing: 2 June 2023 Applicant: Self-represented Solicitors for the Respondent: Laura Hinwood, Sparke Helmore Lawyers Other Party: Self-represented
A child cannot be in the care of more than one person at the same time (s 54A(3) of the Assessment Act).
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